Citation Nr: 0206365
Decision Date: 06/14/02 Archive Date: 06/20/02
DOCKET NO. 96-14 428 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Whether achievement of a vocational goal is reasonably
feasible for purposes of entitlement to vocational
rehabilitation and training under Chapter 31, Title 38,
United States Code.
(The Board addresses the issue of whether VA properly reduced
the evaluation assigned residuals of an arthrotomy for a torn
meniscus of the left knee from 20 percent to zero percent in
a separate decision.)
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
L. J. Nottle, Counsel
INTRODUCTION
The veteran had active service from December 1972 to November
1974. His claim comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1996 determination of the
St. Louis, Missouri, Department of VA Regional Office (RO),
Vocational Rehabilitation and Counseling Division (VR&C). In
May 1999, the Board affirmed VR&C's decision.
The veteran appealed the Board's May 1999 decision to the
United States Court of Appeals for Veterans Claims. In
February 2001, based on a Joint Motion for Remand and to Stay
Proceedings, the Court vacated the Board's May 1999 decision
and remanded the veteran's appeal to the Board for
readjudication pursuant to the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A,
5107).
FINDINGS OF FACT
1. VA notified the veteran of the evidence needed to
substantiate his claim and obtained and fully developed all
evidence necessary for the equitable disposition of that
claim.
2. The veteran's mental state and noncompliance with
psychiatric treatment prevent him from successfully pursuing
a vocational rehabilitation program and becoming gainfully
employed in an occupation consistent with his abilities,
aptitudes and interests.
CONCLUSION OF LAW
The criteria for finding that achievement of the veteran's
vocational goal is reasonably feasible for purposes of
entitlement to vocational rehabilitation and training under
Chapter 31, Title 38, United States Code, have not been met.
38 U.S.C.A. §§ 3100, 3101 (West 1991 & Supp. 2001); 38 C.F.R.
§§ 21.1, 21.35, 21.53, 21.198, 21.362, 21.364 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The issue before the Board is whether achievement of a
vocational goal is reasonably feasible for purposes of
entitlement to vocational rehabilitation and training under
Chapter 31, Title 38, United States Code. In August 1996,
VR&C determined that the veteran was an infeasible candidate
for further rehabilitation training. The veteran appealed
this decision and while his appeal was pending, the President
signed into law legislation that enhances VA's duties to
notify a claimant regarding the evidence needed to
substantiate a claim and to assist a claimant in the
development of a claim. See VCAA, Pub. L. No. 106-475, 114
Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, 5107). The change in the law is applicable to
all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment of the VCAA and
which are not final as of that date. 38 U.S.C.A. § 5107,
note (Effective and Applicability Provisions) (West Supp.
2001).
Where the law or regulations change after a claim has been
filed or reopened but before the administrative or judicial
appeal process is completed, the version of the law or
regulations most favorable to the appellant applies unless
Congress provides otherwise. Karnas v. Derwinski, 1 Vet.
App. 308, 313 (1991). In this case, the RO has not indicated
that it developed or considered the veteran's claim pursuant
to the VCAA. However, prior to the enactment of the VCAA,
the RO took action that is consistent with the notification
and assistance provisions of the VCAA, and thereafter,
adjudicated the veteran's claim. In light of the foregoing,
the Board's decision to proceed in adjudicating this claim
does not prejudice the veteran in the disposition thereof.
See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
First, as required by the VCAA, VA notified the veteran of
the information needed to substantiate his claim. See 38
U.S.C.A. §§ 5102, 5103 (West Supp. 2001). Specifically, in
letters dated September 1996 and May 1997, a statement of the
case issued in October 1996, and a supplemental statement of
the case issued in July 1997, the RO informed the veteran of
the reasons for which his claim had been denied and of the
evidence needed to support his claim, notified the veteran of
the regulations pertinent to his claim, and provided him
opportunities to present additional evidence and argument,
including in the form of hearing testimony, in support of his
claim. The Board provided the veteran further guidance with
regard to the evidence needed to substantiate his claim and
again notified him of the regulations pertinent to his claim
in a decision dated May 1999.
Second, as required by the VCAA, VA fulfilled its duty to
assist the veteran in obtaining and fully developing all of
the evidence relevant to his claim. See 38 U.S.C.A. § 5103A
(West Supp. 2001). For instance, the RO provided the veteran
an opportunity to elaborate on the facts of his case by
presenting testimony at a hearing held before a hearing
officer at the RO in April 1997. The RO also provided the
veteran multiple opportunities to identify pertinent evidence
to be secured in support of his claim, but given that the
veteran did not identify any such evidence, the Board has no
knowledge of any other documentation that should be obtained.
The VCAA does not require remand of all claims pending on its
effective date. See Livesay v. Principi, 15 Vet. App. 165,
178 (2001); see also Wensch v. Principi, 15 Vet. App. 362,
367-68 (2001) (holding that when there is extensive factual
development in a case, including in the record on appeal and
in a detailed Board decision, and further assistance would
not aid in substantiating a claim, the VCAA is inapplicable).
In this case, the RO and the Board notified the veteran of
the evidence needed to substantiate his claim and obtained
and fully developed all relevant evidence necessary for the
equitable disposition of that claim; therefore, further
development would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict
adherence to legal requirements does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case
because such adherence would impose additional burdens on the
VA with no benefit flowing to the veteran). The Board must
now review the merits of the veteran's claim.
The veteran initially filed an application for Chapter 31
vocational rehabilitation in April 1992. At that time, he
was service connected for a left knee disability (residuals,
arthrotomy for torn meniscus, left knee), evaluated as 20
percent disabling, and a right knee disability (residuals,
injury, right knee), evaluated as noncompensable. A combined
disability evaluation of 20 percent was in effect. In May
1992, the veteran met with a VA counseling psychologist to
discuss the Chapter 31 program. On that date, he requested
an evaluation for vocational rehabilitation and agreed to
undergo testing. In July 1992, however, the veteran's father
contacted the psychologist and informed him that, due to
medical problems, the veteran was unable to continue pursuing
his Chapter 31 claim.
In January 1993, the veteran again initiated pursuit of his
Chapter 31 claim by participating in an initial interview and
undergoing vocational testing. On that date, a VA counseling
psychologist determined that the veteran had an employment
handicap and that there should be further exploration of his
vocational goal.
In April 1993, during a counseling session, the psychologist
noted the veteran's history of antisocial behavior as well as
an upcoming court appearance. On that date, the veteran
requested that his file be put in "interrupted" status until
the court matter was resolved. Thereafter, the veteran
returned, explaining that he did not want to wait to
participate in vocational rehabilitation. On that date, the
psychologist, "with many reservations," determined that it
was feasible for the veteran to achieve a vocational goal in
Natural Resource Management. The psychologist noted that the
veteran had severe emotional problems, which might sabotage
his efforts in completing his vocational objective, but
nonetheless found that it was in the veteran's best interest
to provide him an opportunity to demonstrate that he could do
the work required to complete his objective. A
rehabilitation plan was thus prepared in June 1993, and
during the same month, the veteran entered school.
By rating decision dated July 1993, the RO increased the
evaluation assigned the veteran's right knee disability to 10
percent, effective from February 1993. As a result, the
veteran's combined disability evaluation increased to 30
percent.
During VA outpatient treatment at the Mental Health Clinic in
July 1993, the veteran reported that he had dropped out of a
computer class because he was too far behind. He also
reported that he was taking his medication. A social worker
found the veteran to be "stable." In August 1993, a VA
psychiatrist diagnosed the veteran with organic personality
disorder and seizure disorder, and renewed prescriptions for
Librium and Temazepam. In December 1993, VR&C placed the
veteran in interrupted status because an instructor had
withdrawn the veteran from class due to nonattendance.
The veteran visited with a VA counseling psychologist in June
1994, at which time the psychologist noted that the veteran's
Chapter 31 program had been interrupted again in May 1994,
due to the veteran's relocation to Missouri.
In August 1994, VR&C changed the veteran's rehabilitation
plan to reflect his desire to achieve an Associate Degree in
Computer Information Systems. The same month, the veteran
reentered training. In October 1994, the veteran expressed
his concern that physical problems, to include tremors in his
hands, interfered with his ability to complete a computer
operator program. A VA vocational rehabilitation specialist
noted that the veteran abused medications, which might
account for the tremors in his hands. He also noted that the
veteran's nonservice-connected paranoid conditions made some
of his interpersonal contacts at the school difficult. The
veteran discussed the field of photography with the
rehabilitation specialist.
Thereafter, during a December 1994 counseling session, a
psychologist discussed the veteran's vocational objective of
medical photographer in more detail. He noted that such
objective required a minimum of direct or intense
interpersonal relationships, which would be compatible with
the limitations imposed by the veteran's service and
nonservice-connected disabilities. The veteran confirmed
that he planned to complete the requirements for a Federal
Nonpaid Work Experience Program in 12 calendar months at a VA
medical facility. The psychologist noted that the veteran's
progress and cooperation had to be rated as satisfactory by
his supervisor. Based on the counseling session, the
psychologist changed the veteran's rehabilitation plan to
reflect the new program goal.
Subsequently, VR&C assigned the veteran to a VA medical
facility for training in medical photography. However, the
veteran was unable to start his training on time due to
health reasons, to include excessive sleeping, depression and
tremors. The veteran was advised to seek treatment prior to
proceeding. During VA outpatient treatment in February 1995,
a psychiatrist diagnosed the veteran with mixed personality
disorder. He recommended that the veteran be seen in the
Mental Health Clinic for psychological testing. In March
1995, the veteran was seen for complaints of excessive
sleeping. On that date, he reported that he was on
medication for pain and seizures. He did not indicate that
he took Librium or Temazepam. A few days later, the veteran
underwent a psychiatric consult, at which time he complained
of "cold feet." The psychiatrist rendered no diagnosis, but
recommended that the veteran be seen by Neurology.
Later, in March 1995, the veteran entered the vocational
rehabilitation training program. Reports of Contact from the
veteran's supervisor, dated from March 1995 to June 1995,
reveal that the veteran increasingly engaged in inappropriate
behavior. The veteran's supervisor reported that the veteran
discussed inappropriate things and had purportedly hit
another veteran forcefully in the chest. The supervisor
noted that the veteran had a psychiatric consult scheduled in
March 1995. The veteran's claims folder confirms that the
veteran was seen at the end of March 1995 for a psychiatric
consult and was accompanied by a VA employee. The veteran
complained of confusion and forgetfulness and reported that
he took medication for pain and seizures. He indicated that
he was afraid of taking too many medications because of
possible side effects.
A letter in the file from the veteran's supervisor further
details the veteran's inappropriate behavior at the VA
medical facility, to include the veteran's apprehension and
paranoia, along with some specific unusual requests.
Reportedly, the veteran underwent psychiatric evaluation and
the psychiatrist strongly recommended that the veteran take
medication daily. The psychiatrist and the supervisor
explained to the veteran that he needed to undergo
psychiatric treatment in order to continue as a student in
the Medical Media program, and the veteran agreed. However,
after four weeks of admitted noncompliance, the supervisor
contacted VR&C.
Thereafter, a VA counseling psychologist met with the veteran
and told him that he would not be allowed to return to the VA
medical facility because of continued interpersonal
difficulties. The psychologist offered the veteran a work
adjustment evaluation and scheduled the veteran for an intake
appointment at Metropolitan Employment Rehabilitation
Services at the end of June 1995. The veteran agreed to
cooperate. However, after the scheduled meeting, the veteran
contacted his supervisor to indicate his displeasure over the
interruption of the photography program for a work adjustment
evaluation. During this contact, the veteran purportedly
made threats.
In July 1995, the veteran made an effort to enter VR&C
offices and again threatened physical harm. Based on the
veteran's history and recent events, a VA counseling
psychologist restricted the veteran from access to the RO.
In addition, he determined that, at that time, the veteran
was not a feasible candidate for vocational rehabilitation
training. He noted that the veteran's case would be reviewed
in one year. Thereafter, VR&C notified the veteran that his
claim was in interrupted status and the veteran was urged to
comply with psychiatric treatment and medication.
In July 1995, the veteran underwent a VA psychiatric consult.
On that date, the veteran indicated that he did not know why
he was sent by VR&C. He also indicated that he believed he
did not have a problem, did not want any medication, and,
because he had no problem, did not want to engage in
treatment.
According to an August 1995 Report of Contact with the
veteran's case manager, the veteran refused medication and
therapy as prescribed by his psychiatrist. Thereafter, in
August 1995, a VA counseling psychologist made a formal
determination of feasibility and found that, at that time,
the veteran was not considered a feasible candidate for
vocational rehabilitation. The psychologist also noted that
the veteran's current situation did not warrant review in 12
months as he had been noncompliant with psychiatric treatment
for quite some time.
By rating decision dated September 1995, the RO proposed to
reduce the evaluation assigned the veteran's left knee
disability from 10 percent to zero percent. In September
1995, the veteran was seen at a VA medical facility and
complained of the reduction and made "veiled threats." The
veteran denied taking any psychiatric medication and refused
to be seen by a psychiatrist. By rating decision dated
December 1995, the RO effectuated the reduction, and based on
this action, the veteran's combined disability evaluation
decreased to 10 percent, effective from March 1996.
In January 1996, the veteran requested treatment for anxiety
following the death of his father. He indicated his
willingness to take all prescribed medications. The veteran
was scheduled to see a psychiatrist later that same month,
but he does not appear to have kept this appointment.
In May 1996, the veteran requested a meeting with VR&C
regarding a return to school. In response, a VA counseling
psychologist told the veteran that there was no plan to
review his file until July 1996 or August 1996, but that the
veteran's current treatment regime possibly warranted review.
In August 1996, the veteran was admitted to the hospital
following an overdose of Dilantin. Notes from a VA
orthopedist to the file in July 1996 documented the veteran's
unwillingness to cooperate in the treatment of a knee injury
and his sole concern with the renewal of his prescriptions
for pain.
In August 1996, a VA counseling psychologist met with the
veteran, who indicated that he was not undergoing any
psychiatric treatment at the time. The psychologist reminded
the veteran that a VA psychiatrist had prescribed
psychotropic medication, and noted that the veteran had
refused to take the medication. The psychologist then found
that, although the veteran had material limitations that
warranted intervention by vocational rehabilitation, given
his history and continued noncompliance with psychiatric
treatment, at that time, the veteran was an infeasible
candidate. The psychologist based his determination on the
veteran's refusal to participate in psychiatric interventions
and indicated his belief that the veteran would not make
substantive and meaningful changes in the next 12 months. By
letter dated the next month, VR&C notified the veteran that
he had been denied further vocational rehabilitation training
benefits under Chapter 31 benefits.
In a December 1996 letter, a VA orthopedic surgeon reported
that the veteran had a pleasant and understanding attitude
during prolonged convalescence from a patellar fracture. The
orthopedic surgeon indicated that he hoped his attestation
would counteract the previous effect of reports to the DAV
and other sources, which may have reflected unfavorably on
the veteran's behavior. He further indicated that the
veteran was "an excellent candidate for vocational
rehabilitation" and that he "strongly recommend[ed] that he
be placed in such a program."
In February 1997, the veteran refused VA psychiatric
treatment. He argued that he was "not a psych case." It was
noted that he took Ritalin.
During an April 1997 hearing held before a hearing officer at
the RO, the veteran testified that he did not remember very
well the reported incidents of threats and physical violence.
He indicated that he exhibited negative behavior for only a
short period of time and suggested that his actions were more
benign than indicated in the record. He asserted that some
of his actions stemmed from specific conflict with his
supervisor and that he did not believe he would be a threat
to anyone if he continued training. The veteran testified
that the medication (Ritalin) he took for Attention Deficit
Disorder changed his behavior in a positive fashion. He
indicated that he had been diagnosed with organic brain
disorder on one occasion and had had been prescribed a drug
similar to Oversine; however, he refused to take it as he
knew "what Oversine does." He indicated that he had sought
treatment at the Mental Health Clinic in March 1997,
approximately one month prior to this hearing. He testified
that he did not know he had a diagnosis of paranoid
schizophrenia. The veteran's representative argued that the
veteran's behavior while in the vocational rehabilitation
program was "situational" and that his condition had
stabilized.
By rating decision dated May 1997, the RO increased the
evaluation assigned the veteran's right knee disability from
10 percent to 20 percent, effective from November 1996. As a
result of this action, the veteran's combined disability
evaluation increased to 20 percent.
A May 1997 letter from a VA staff psychiatrist indicated that
the veteran was being treated for personality disorder and
drug dependency and was responding well to treatment.
However, during outpatient treatment in August 1997, the
veteran was noted to get irritated and anger easily. His
Ritalin was renewed. During VA hospitalization later that
month, the veteran persisted in wearing his martial arts
uniform and made references to the medical staff regarding
the potential for physical threat, to include the use of
firearms. The veteran left the hospital without informing
anyone and there was concern that he would remove the
dressing and manipulate his leg wound.
By rating decision dated August 1999, the RO increased the
evaluation assigned the veteran's left knee disability from
zero percent to 10 percent, effective from March 1999. As a
result of this action, the veteran's combined disability
evaluation increased to 30 percent.
The veteran seeks further vocational rehabilitation training
benefits under Chapter 31 benefits. Pertinent law and
regulations indicate that a veteran shall be entitled to a
program of rehabilitation services under 38 U.S.C.A. Chapter
31 if he has a service-connected disability of 20 percent or
more and is determined to be in need of rehabilitation to
overcome an employment handicap. 38 C.F.R. § 21.40 (2001).
As the veteran has service-connected disabilities that are
more than 20 percent disabling and has been found to have an
employment handicap as defined in 38 C.F.R. § 21.35(a)
(2001), he has met the basic eligibility requirements under
Chapter 31, Title 38, United States Code.
The provisions of Chapter 31 are intended to enable veterans
with service-connected disabilities to achieve maximum
independence in daily living and, to the maximum extent
feasible, to become employable and to obtain and maintain
suitable employment. 38 U.S.C.A. § 3100 (West 1991). In
this case, VR&C found the veteran eligible for Chapter 31
benefits, but denied him entitlement to further vocational
rehabilitation and training on the basis that his vocational
goal was not reasonably feasible and that the veteran was not
a feasible candidate because of his failure to cooperate.
The term "vocational goal" is defined by statute as gainful
employment consistent with a veteran's abilities, aptitudes
and interests. 38 U.S.C.A. § 3101(8) (West 1991). In order
to find that the achievement of a particular vocational goal
is reasonably feasible, the facts must show that the effects
of the veteran's service-connected and nonservice-connected
disabilities, when considered in relation to his
circumstances, do not prevent successful pursuit of a
vocational rehabilitation program and successful employment.
38 C.F.R. § 21.35(h)(2) (2001). The criteria for feasibility
are: (1) a vocational goal must be identified; (2) the
veteran's physical and mental conditions must permit training
to begin within a reasonable period; and (3) the veteran must
possess the necessary educational skills and background to
pursue the goal. 38 C.F.R. § 21.53(d) (2001). When,
however, VA finds that the provisions of paragraph (d) of 38
C.F.R. § 21.53 are not met, but it has not been determined
that achievement of a vocational goal is infeasible, VA shall
provide the rehabilitation services contained in §
21.35(i)(1)(i) of this part as appropriate. A finding that
achievement of a vocational goal is infeasible without a
period of extended evaluation requires compelling evidence
that establishes infeasibility beyond any reasonable doubt.
38 C.F.R. § 21.53(a)(2) (2001); see also 38 C.F.R.
§ 21.57 (2001).
Moreover, if at any time a veteran's conduct or cooperation
becomes unsatisfactory, vocational rehabilitation service and
assistance may be "interrupted" provided the evidence
indicates that the veteran will be able to resume the program
at some future date, which can be approximately established.
See 38 C.F.R. §§ 21.197, 21.362, 21.364 (2001). If VA
determines that a veteran has failed to maintain satisfactory
conduct or cooperation, VA may, after determining that all
reasonable counseling efforts have been made and are found
not reasonably likely to be effective, discontinue services
and assistance to the veteran. 38 C.F.R. § 21.364(a) (2001).
The veteran is responsible for satisfactory conduct and
cooperation in developing and implementing a program of
rehabilitative services under Chapter 31. 38 C.F.R. §
21.362(a) (2001).
Pursuant to the aforementioned law and regulations, and based
on a thorough review of the probative evidence of record, the
Board finds that, at this time, the veteran's mental state
and noncompliance with psychiatric treatment prevent him from
successfully pursuing a vocational rehabilitation program and
becoming gainfully employed in an occupation consistent with
his abilities, aptitudes and interests. The evidence of
record is compelling. By not complying with requests to seek
out and adhere to psychiatric treatment, the veteran has
hindered his ability to work with others and, in turn, his
ability to pursue a vocational goal.
In the Board's view, since the veteran filed his original
claim for Chapter 31 benefits in April 1992, VA has fulfilled
its obligation to assist the veteran in pursuing a vocational
goal. Despite early concerns regarding a history of
antisocial behavior, a VA counseling psychologist initially
found that pursuit of a vocational goal was feasible for the
veteran. Based on that determination, VR&C provided the
veteran the opportunity to pursue a training program. In
addition, as noted by changes in the veteran's rehabilitation
plan, VR&C indicated a willingness to work with the veteran.
Subsequently, during the veteran's most recent and final
training program in medical photography, VR&C informed the
veteran that his progress and cooperation must be rated as
satisfactory by his supervisor. However, the veteran's
supervisor did not find the veteran's progress and
cooperation in pursuing his vocational goal to be
satisfactory. Rather, the supervisor found that the veteran
exhibited inappropriate behavior toward others and, despite
advice to the contrary, failed to participate in a program of
psychiatric treatment. Accordingly, the veteran was placed
on interrupted status for a year, after which time his case
was again reviewed. At that time, the veteran admitted that
he was not undergoing psychiatric treatment, and based on
that fact, VR&C discontinued vocational rehabilitation
services.
The Board acknowledges the testimony of the veteran and his
representative that the inappropriate behavior noted during
the vocational rehabilitation training program was
"situational" and directly related to personal conflict with
a supervisor. However, the other evidence of record does not
support this alleged characterization of the veteran's
behavior. Rather, it shows that the veteran engaged in a
pattern of inappropriate behavior, to include threats, and in
at least one instance, physical violence, which extended
beyond interaction with his immediate supervisor. It also
shows a pattern of uncooperative behavior with medical
professionals, to include those in nonpsychiatric fields, and
inappropriate conduct both before and after his participation
in the vocational rehabilitation training program.
The Board also acknowledges the December 1996 letter from the
VA orthopedic surgeon, which indicated that the veteran was
"an excellent candidate for vocational rehabilitation" and
reflected hope that such letter would "counteract" previous
reports that may have reflected "unfavorably" on the
veteran's behavior. However, in his letter, the orthopedic
surgeon did not comment on the veteran's cooperation
concerning psychiatric treatment. The Board certainly cannot
discount subsequently dated VA orthopedic notes that indicate
that the veteran was uncooperative in treatment and made
references to medical personnel regarding the potential for
physical threat.
While the record contains some evidence, including a May 1997
letter and the veteran's April 1997 testimony, indicating
that the veteran has received treatment for a personality
disorder, drug dependency and a psychiatric disorder, it does
not contain evidence indicating that the veteran has ever
fully complied with a psychiatric treatment regime. In
addition, evidence of record dated after May 1997 reveals
continuing inappropriate behavior. It also reveals that,
although the veteran has sought treatment for a variety of
medical problems since 1997, he has not pursued psychiatric
treatment.
Until the veteran can demonstrate that he is able to comply
with the terms of training as identified by appropriate VA
personnel, achievement of a vocational goal will not be found
to be reasonably feasible. To date, the veteran has not
shown that he has the ability to work under close
supervision, or, as previously indicated, to comply with a
psychiatric treatment regime, to include any prescribed
medication. The veteran also has not shown an ability to get
along with others. Rather, he has repeatedly exhibited
threatening behavior, which has, at least on one occasion,
escalated to physical violence. In addition, the veteran has
not identified a vocational goal that he is reasonably
capable of completing.
Inasmuch as the veteran's mental state and noncompliance with
psychiatric treatment prevent him from successfully pursuing
a vocational rehabilitation program and becoming gainfully
employed in an occupation consistent with his abilities,
aptitudes and interests, the Board concludes that, at this
time, achievement of a vocational goal is not reasonably
feasible. The preponderance of the evidence is against the
veteran's claim; therefore, his claim must be denied.
ORDER
The achievement of a vocational goal not being reasonably
feasible for purposes of entitlement to vocational
rehabilitation and training under Chapter 31, Title 38,
United States Code, the appeal is denied.
S. L. KENNEDY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.